Central Administrative Tribunal - Ernakulam
George M.S vs The Flag Officer on 10 March, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00412/2016
Friday, this the 10th day of March, 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
George M.S., aged 92, S/o. Sebastian,
Moonjapilly House, Link Park, Pottakuzhi Road,
Pachalam PO, Cochin - 682 012. ... Applicant
(By Advocate : Mr. P.V. Mohanan)
Versus
1. The Flag Officer, Commanding-in-Chief,
Southern Naval Command, Willington Island,
Naval Base, Kochi - 682 004.
2. The Chief of the Naval Staff,
Directorate of Civilian Personnel,
Integrated Head Quarters of Ministry of Defence (Navy),
Sena Bhavan, New Delhi - 110 011. . . . Respondents
[By Advocate : Mr. N. Anilkumar, Sr. PCGC (R)]
This application having been heard on 20.02.2016, the Tribunal on
10.03.2017 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
Applicant is a 92 year old defence civilian pensioner retired on 30.9.1982 from the Southern Naval Command. On 11.4.2015 he was admitted in the Lourdes Hospital due to coronary artery and acute myocardial infarction. He was discharged on 22.4.2015. He submitted claim for reimbursement for medical expenses to the tune of Rs. 37,638/- on 1.8.2015 with the necessary essentiality certificate. But his claim was rejected by Annexures A6 and A7 proceedings stating that there is no provision for reimbursement of medical expenses for pensioners. He seeks relief as under:
'A. To call for the records leading Annexure A6 and A7 and set aside the same;
B. To direct the respondents to reimburse Rs. 37638/- to the applicant being medical expenses incurred for Heart ailments as evidenced by Annexure A1 and A2 forthwith with interest at the rate of 9% per annum from the date of due till the date of actual disbursement.
C. Any other appropriate order or direction as this Hon'ble Tribunal deem fit in the interest of justice including cost.'
2. The OA was resisted by the respondents contending that the Civil Services (Medical Attendance) Rules, 1944 [hereinafter referred to as CS(MA) Rules] govern the medical benefits of serving Government employees. As per note-2 to Rule 1 of the said rules the same is not applicable to the retired Government officials. Retired personnel in defence service are governed by the Ex-servicemen Contribution Health Scheme (ECHS) which enables the retired service personnel to avail medical facilities in ECHS approved hospitals across the Country. But, for the civilian persons Government of India has provided for medical treatment under Central Government Health Scheme (CGHS) and medical reimbursement scheme. Those who opt for CGHS scheme can avail of medical facilities through the CGHS approved hospitals. In Kerala CGHS is available only in Trivandrum. The retired civilian employees who have opted for CGHS scheme at the time of his retirement also are entitled to medical reimbursement facility but those who have not opted for CGHS are provided with Family Medical Allowance (FMA) of Rs. 500/- per month. The applicant has been drawing FMA since his retirement. In the above circumstances the respondents contend that applicant is not entitled to medical reimbursement as claimed by him. It is also contended that the competent authority for extending the CS(MA) Rules to pensioners is the DoP&T and hence the OA is barred for non-joinder of necessary parties.
3. A rejoinder was filed by the applicant refuting the contentions in the reply statement and stating that as per OM No. S.14025/4/96-MS, dated 5.6.1998 the Government has extended the CS(MA) Rules to Central Government pensioners residing in non-CGHS areas as recommended by the Vth Pay Commission. According to the applicant the applicability of the aforesaid OM was discussed by the Ahmedabad Bench of this Tribunal in OA No. 205 of 2003 in the case of Mr. Prabhakar Sridhar Bapat v. Union of India & Anr. which was upheld by the Gujarat High Court in SCA No. 3843/2004. The SLP filed against the decision of the Gujarat High Court was dismissed by the apex court on 3.4.2012. The review petition also was dismissed by the Supreme Court on 30.10.2013. It is also contended by the applicant that the High Court of Himachal Pradesh in the judgment dated 28.12.2015 in CWP No. 4621/2011 declared that all Central Government pensioners residing in non-CGHS areas would be governed under CS(MA) Rules, 1944 or CGHS rules and option has to be sought from them by the Central Government.
4. Heard both sides in extenso. Detailed argument notes were also filed by the counsel appearing on both sides. Heard Mr. P.V. Mohanan, learned counsel for the applicant and Mr. N. Anilkumar, Sr. PCGC (R) for the respondents. Perused the record.
5. The thrust of the arguments of the learned Sr. PCGC is that the note 2 under Rule (1) of CS(MA) Rules unambiguously excludes pensioners from the applicability of CS(MA) Rules. Referring to the maxim Dura Lex Sed Lex (law is hard but law is law) he further submitted that administrative instructions cannot override the rules having statutory status and the courts also cannot interpret the statutory provision differently even if there is hardship or inconvenience caused to any group of persons. According to him even if there is some lacuna or defects in the rules it can be corrected only by the legislature or by the law makers and the courts cannot interpret the same in a manner making a new law. He further submitted that if the retired employees are also brought within the fold of the beneficiary of the CS(MA) rules huge financial burden would be caused to the Government. He therefore, prays for rejecting the claim of the applicant.
6. Learned counsel for the applicant placed heavy reliance on the judgment dated 28.12.2015 of the High Court of Himachal Pradesh, Shimla in Union of India & Anr. v. Shankar Lal Sharma (CWP No. 4621 of 2011) wherein the Union of India was directed to seek option from the respondents and also similarly situated retires central government employees residing in non-CGHS area for medical coverage under CGHS scheme or under CS(MA) rules within six months from the date of that judgment. It was also directed that the Union of India should release a sum of Rs. 1,79,559/- incurred by the respondent for his treatment and a sum of Rs. 20,000/- towards post operative follow up, medicines and transportation charges with a default clause for interest. Shri Mohanan submitted that the Himachal Pradesh High Court had invoked the interpretative tool of 'reading down' note No. 2 appended to rule 1 to the extend the benefit of CS(MA) Rules, 1944 to retired Government officials in non-CGHS area to save it from unconstitutionality and to make it workable. 'Reading down' has been explained by B.C. Ray, J in the constitution bench decision Delhi Transport Corporation v. DTC Mazdoor Congress & Ors. - AIR 1991 SC 101 as follows:
'A statute can be declared to be valid where any term has been used in the Act which per se seems to be without jurisdiction but can be read down in order to make it constitutionally valid by separating and excluding the part which is invalid or by interpreting the word in such a fashion in order to make it constitutionally valid and within jurisdiction of the legislature which passed the said enactment by reading down the provisions of the Act......' It is worth noting that the other Hon'ble Judges of the apex court including the then Hon'ble Chief Justice of India in the aforesaid Constitution Bench decision made it clear in their separate judgments that the interpretative tool of 'reading down' cannot be used to blow life into the void law to save it from unconstitutionality or to confer jurisdiction on the legislature and that if the impugned provision is unconstitutional or not in tune with the legal principles the court can strike down such provision in appropriate cases as it is the duty of the legislature to make necessary changes in the law. Nevertheless the majority view expressed by his Lordship B.C. Ray J. remained undisturbed. The same technique of interpretation was resorted to by the High Court of Himachal Pradesh in the aforesaid judgment relied on by the applicant, reading down note (2) of Rule 1 of CS (MA) Rules making the said rules applicable to retired employees also who reside in non-CGHS areas.
7. It is worth noting that in Annexure A8 order of the Ahmadabad Bench of this Tribunal it was held that the respondent Department shall reimburse the admissible amount of medical expenses claimed by the pensioner. In that case the applicant was a Deputy Postmaster who after his retirement suffered a severe heart attack and had to undergo coronary artery bye - pass surgery and had incurred expenses of Rs. 1,60,736/-. In the order dated 3.4.2013 the Ahmadabad Bench relied on a decision of the High Court of Gujarat in Union of India v. Prabhakar Sridhar Bapat SCA No. 3843 of 2004 wherein the claim for reimbursement of medical expenses of a retired employee of the Postal Department was allowed, confirming the decision of the Ahmadabad Bench of this Tribunal in OA No. 205 of 2003. When the matter was taken to the apex court in SLP, the Supreme court declined to interfere with the said judgment of the Gujarat High Court.
8. In the light of the Annexure A8 judgment and the precedents cited therein, it appears to this Tribunal that the same decision can be made applicable to the instant case also. The judgment dated 28.12.2015 of the High Court of Himachal Pradesh in CWP No. 4621 of 2011 also is binding on this Tribunal as the aforesaid CWP arose from a decision of the Chandigarh Bench of this Tribunal.
9. In the result the OA is allowed. Annexures A6 & A7 are quashed and set aside. Respondents are directed to reimburse Rs. 37,638/- to the applicant being the medical expenses incurred for treating his heart ailments as evidenced by Annexures A1 and A2, with interest at 6% per annum from the date of presentation of the bills to the respondents till actual disbursement. Parties are directed to suffer their own costs.
(U. SARATHCHANDRAN) JUDICIAL MEMBER ''SA''